Justice Bill Wilson's case is set to break new ground in front of a Judicial Conduct Panel. Let's all just wait for it to do its job.

The Judicial Conduct Commissioner, Sir David Gascoigne, has made his recommendation to the Attorney-General as to what he thinks should be done about the allegations leveled against Supreme Court Justice Bill Wilson.

To recap, the Commissioner's job is to carry out a preliminary investigation into complaints about a judge's conduct and, provided the matter goes beyond the trivial and there is some factual basis to the complaint, decide what response he thinks is warranted. If the conduct simply requires a telling off or counseling, the Commissioner hands it over to that judge's head of bench (essentially her or his manager) to deal with.

But if the conduct "may warrant consideration of removal of the Judge", then the Commissioner recommends to the Attorney-General that a "Judicial Conduct Panel" be established to, in effect, carry out a trial. Should that panel decide that the conduct did occur, and that it does justify the judge's removal, then it recommends such to the Attorney-General.

A few weeks ago, following the publicity given to a complaint against Justice Wilson by a former judge, Sir Ted Thomas, I suggested that I thought it likely that the Commissioner would have to recommend a Judicial Conduct Panel be established in Justice Wilson's case. And so it has transpired - the Commissioner has told the Attorney-General he thinks Justice Wilson's case requires this further examination.

But, and it is a significant but, the grounds on which the Commissioner has made that recommendation are relatively narrow. Of all the allegations of conflicted interests and possible duplicity thrown at Justice Wilson, the only one that the Commissioner thinks needs further exploration is the extent and adequacy of his disclosures to his Supreme Court colleagues before they first ruled on his potential conflict of interest.

In other words, all that needs looking into is "what did Justice Wilson know, when did he know it, and why didn't he speak up sooner?" Furthermore, the Commissioner notes that while he cannot examine this matter any further (not having the power to, for instance, put witnesses under oath when answering questions):

"On further inquiry, and in the exercise of its judgment about Justice Wilson’s conduct and the context in which it occurred, a Judicial Conduct Panel may well form a view which is favourable to the Judge, but a different view is possible."

This is code for "it may well be that Justice Wilson's colleagues on the Court were badly mislead through a regrettable misunderstanding - but it also may be that they were lead astray in a more deliberate fashion." And obviously that is a question that does need to get answered in the public forum of a Judicial Conduct Panel, if only to re-establish trust between the members of the Supreme Court bench!

However, there are a couple of other points about the Commissioner's recommendation worth noting. One is the serve that the Commissioner gives to Sir Ted Thomas' complaint about Justice Wilson. Sir David notes that this complaint is based on what Sir Ted heard from a fellow lawyer, Mr Farmer, in the following circumstances:

"Mr Farmer had turned to Sir Edmund, a friend of longstanding and an experienced former Judge, as someone with whom he thought he could discuss, frankly and in confidence, a sensitive situation."

Clearly Sir David is then less than impressed that these private conversations then became the basis for a complaint to the Commissioner, especially as the complaint then mysteriously made its way into the media.

Furthermore, the hearsay nature of much of Sir Ted's complaint means that a lot of its more sensational content turned out to be either plain wrong, or at least rather overblown, on closer examination. Which goes to show why evidence about what someone heard someone else say about what a third party told them ought never to be taken too seriously.

Finally, I hope my prediction that "the very decision to recommend that a Judicial Conduct Panel is required would deeply undermine Justice Wilson's position" turns out to be completely wrong. For the reasons admirably laid out by Richard Cornes here, "The constitutional imperative of judicial independence requires that no judge should be hounded from their court on the basis of media pressure."

I'd extend that claim to cover the "new media", and suggest to my fellow denizens of the blogosphere that it is far too early to call for "Justice Wilson to resign and return to practising as a lawyer" (something he cannot do, as a judge of the High Court, in any case). Let's allow justice to be seen to be done, even to a Justice.